A major objective of workforce management is to acquire the right people to do the right jobs. In order to meet the challenges of creating and maintaining highly productive and efficient organizations, agency flexibilities in filling critical leadership positions are essential. This chapter provides information about other methods, in addition to competitive appointment, that agencies may use to staff SES positions.

Noncareer Appointment Authorities

Statute: 5 U.S.C. 3134, 3394, and 3395

Regulations: 5 CFR 317, Subpart F

Allocating Noncareer Appointment Authorities

In addition to allocating spaces, OPM also allocates specific appointment authorities to agencies. (Noncareer appointment allocations for all components of the Department of Defense are made to the Secretary of Defense.) Adjustments in the number of SES appointment authorities are limited by law.

Under 5 U.S.C. 3134(b), the total number of SES noncareer authorities may not exceed 10 percent of the Governmentwide SES position allocation. Further, under 5 U.S.C. 3134(d), the number of SES positions in any agency filled by noncareer appointees may not exceed the greater of 25 percent of the agency’s SES allocation, or the number of positions filled on October 13, 1978 by noncareer executive assignment, or appointment to level IV or V of the Executive Schedule not requiring Senate confirmation. This limitation does not apply to agencies having fewer than four SES space allocations.

Under 5 CFR 317.601(b), each use of a noncareer appointment authority must be approved individually by OPM, and the authority reverts to OPM upon departure of the incumbent, unless otherwise provided by OPM. In this way, OPM continuously resets the number of noncareer appointment authorities in each agency, ensures that the 10 percent Governmentwide limit is not exceeded, and meets OPM’s statutory obligation to determine annually the number of noncareer allocations for each agency.

An agency initiates a request for a noncareer appointment authority by entering it into the Executive and Schedule C System (ESCS). Each request must be for a named individual to fill a specific SES General position. If the individual is currently a noncareer SES within the agency, the request is made for an SES noncareer reassignment. Otherwise, it is for a new SES noncareer appointment. The agency then uses ESCS to generate an OPM form 1652 for documentation of agency approvals. If ESCS is temporarily unavailable and the need is urgent, the agency should contact OPM (SERS) for guidance. After completing OPM form 1652, the agency forwards the form to SERS@opm.gov. To facilitate timely OPM approval, the agency should work with the Presidential Personnel Office to fulfill any preliminary vetting requirements for the prospective appointee before forwarding to OPM. OPM documents approval by faxing OPM form 1652 back to the agency, signed by the OPM approving official. An agency may only appoint the individual to the position authorized by OPM and may not do so until any previous incumbent has left. There is no provision for overlap or dual incumbency of a position.

SES noncareer appointment authorities are made on a case-by-case basis and are valid only for the individual and position for which approved.

Authorities for Appointment

Authority. An agency must have prior approval from OPM to make a noncareer appointment (5 CFR 317.601(b); 5 U.S.C. 3394(b)). All other pertinent documentation including the form, 1652, Request for an SES Appointment Authority, should also be uploaded into ESCS by the agency. The form, 1652, Request for an SES Appointment Authority, is submitted in ESCS after appropriate agency clearances. If ESCS is temporarily unavailable and the need is urgent, the agency should contact OPM (SERS) for guidance.

Position. Appointment may be made only to a General position.

Competition. Competitive procedures are not required to make these appointments.

Qualifications. The appointing authority must determine in writing that the appointee meets the qualifications requirements for the position.

Tenure. The appointee does not have career tenure and serves at the pleasure of the appointing authority.

Reassignments

OPM Approval. An agency may reassign a noncareer appointee to a different General position only upon approval by OPM. An agency initiates a request for a noncareer reassignment by entering it into ESCS. The form, 1652, Request for an SES Appointment Authority, is submitted in ESCS after appropriate agency clearances. If ESCS is temporarily unavailable and the need is urgent, the agency should contact OPM (SERS) for guidance.

Transfers

Transfer of a noncareer appointee to another agency, may be made only to a General position for which the individual is qualified. The new agency must obtain prior OPM approval of the required appointment authority in order to transfer the appointee.

In a transfer of function between agencies, noncareer appointees may be offered transfers at the discretion of both agencies but subject to the ceiling on noncareer appointments that applies to the executive agency to which the function is being transferred. Agencies must get prior approval from OPM for the transfer of appointment authorities.

Transitions and Presidential Nominees

To assist in transitions, OPM may make noncareer appointment authorities available to agencies following the inauguration of a new President, or the nomination of a new agency head. OPM must approve use of the appointing authority.

Tenure. The appointee does not have career tenure and serves at the pleasure of the appointing authority.

Presidential nominees may be given a noncareer appointment authority while awaiting Senate confirmation, but cannot be appointed to the target position, until confirmed by the Senate.

These individuals normally function in an advisory or consultative capacity in another position until confirmed. OPM must approve use of the appointing authority.

Change from Career to Noncareer Appointment

A career SES appointee cannot be required to accept a noncareer appointment as a condition for appointment to another SES position [5 CFR 317.904]. If a career appointee voluntarily elects to accept a noncareer appointment, the voluntary nature of the action must be documented in writing before the appointment. The documentation must be retained permanently in the appointee’s Official Personnel Folder. [See OPM’s Guide to Personnel Recordkeeping, Chapter 3].

If a career appointee is under regular CSRS coverage and is changing to a noncareer appointment, the individual must be informed that he or she will automatically acquire CSRS Offset coverage (CSRS plus Social Security) or FERS coverage depending on whether the individual has five years of service at the time of the action. (The action also triggers an opportunity to elect FERS coverage if the individual is not automatically covered.) The individual must also be informed that, if he or she later returns to a career SES appointment, it will not be possible to return to regular CSRS coverage without Social Security. The agency Benefits Officer can answer any questions pertaining to these provisions.

Limited Appointment Authorities

Statute: 5 U.S.C. 3134, 3394, and 3395

Regulations: 5 CFR 317, Subpart F

Limited Appointment Authority

5 U.S.C. 3134(e) restricts the combined number of limited term and limited emergency appointees Governmentwide to five percent of the total number of SES spaces allocated to all agencies.

Under 5 CFR 317.601(c), each agency is provided a pool of limited appointment authorities equal to three percent of its SES space allocation, with a minimum of one authority. These authorities may be used without prior OPM approval to appoint an individual who meets the stated criteria. The pool authorities may not be used to appoint a retired SES member.

OPM approval of a limited appointment authority does not imply authorization of an additional SES position allocation. Limited term and limited emergency appointments count against the agency’s SES position allocation. An additional SES position allocation must be requested if the agency does not have an available allocation to use to appoint approved limited term or limited emergency appointees.

Agency requests for limited term and limited emergency appointment authorities are considered on an ad hoc basis upon submission of a written justification that outlines the circumstances warranting use of the authority. Agency requests for a limited term appointment are created in ESCS. Agencies must request a specific authorization from OPM for the use of each authority outside the agency’s pool, unless the agency has an agreement with OPM that authorizes the agency to make a certain number of limited appointments on its own under specified circumstances (e.g., two-year rotating assignments to bring in individuals from universities to a scientific organization within the agency). Generally, agencies are expected to exhaust their pool authorities, provided the proposed appointees meet the requirement for holding career or career- type appointments outside the SES, before requesting OPM approval of a limited term or limited emergency appointment authority.

Appointment Authorities

Authority. An agency must have prior approval from OPM to make a limited-term or limited emergency appointment (5 CFR 317.601(c)(2); 5 U.S.C. 3394(b)), except when using its pool of delegated limited appointment authorities provided under 5 CFR 317.601(c)(1) to make a limited term or a limited emergency appointment [See Chapter 1]. A request for a limited-term or limited emergency appointment authority must be created in the ESCS. All other pertinent documentation including the form, 1652, Request for an SES Appointment Authority, should also be uploaded into ESCS by the agency. The form, 1652, Request for an SES Appointment Authority, is submitted in ESCS after appropriate agency clearances. If ESCS is temporarily unavailable and the need is urgent, the agency should contact OPM (SERS) for guidance.

Position. Appointment may be made only to a General position.

Competition. Competitive procedures are not required to make these appointments.

Qualifications. The appointing authority must determine in writing that the appointee meets the qualifications requirements for the position.

Tenure. The appointee does not have career tenure and serves at the pleasure of the appointing authority.

Conditions Regarding Limited Appointment Authorities

The following information is provided to assist agencies in determining whether a proposed use of SES limited term or limited emergency appointment is appropriate, and if so, what information should be provided to justify the request.

Pool. By regulation (5 CFR 317.601(c)(1)), each agency is provided a pool of limited appointment authorities equal to three percent of its SES space allocation, or one authority, whichever is greater. An agency may use these authorities only to make a limited term or limited emergency SES appointment of an individual who holds a career or career-conditional appointment (or an appointment of equivalent tenure) in a permanent civil service position outside the SES. The agency must notify OPM of the appointment by entering the incumbency information into OPM’s Executive and Schedule C System. OPM may suspend the pool authority if necessary, either Governmentwide or for an individual agency, e.g., if the agency does not make appointments from the pool in accordance with statutory and regulatory provisions.

Staffing. When filling an SES position by limited-term or limited emergency appointment, an agency is not required to hold a competition or even announce the position is available. Also, QRB review of the appointee’s qualifications is not required. Agencies must request OPM approval when proposing to make a limited term or limited emergency appointment under the following circumstances:

• Prospective appointee is not a civil service employee, or is a civil service employee but does not hold a career or career-conditional appointment (or an appointment of equivalent tenure) in a permanent civil service position outside the SES.
• Prospective appointee meets the criteria for limited appointment by the agency under 5 CFR 601(c)(1) (i.e., holds a career or career-conditional appointment or an appointment of equivalent tenure in a permanent civil service position outside the SES), but all of the agency’s pool authorities are in use.

Time limit. A limited term appointment authority (LTA) may not exceed three years. A limited emergency appointment authority (LEA) may not exceed 18 months. An individual serving on a limited appointment may not be appointed to, or continue to hold, a position under such an appointment if, within the preceding 48 months, the individual served in the aggregate more than 36 months under any combination of limited term or limited emergency appointments.

Extension. A limited appointment is nonrenewable. If an agency makes an appointment for less than the period authorized by OPM, the agency may extend the appointment to that period but only if the agency does so before the initial appointment expires. An SES member whose limited appointment expires may not be reappointed to the position. For example, if OPM authorizes a limited term appointment for a period of 24 months and the agency makes an initial appointment of 12 months, the agency may extend the appointment up to an additional 12 months. The total appointment length including the extension equals the original 24 months approved by OPM. If an agency needs to ask OPM to extend the time period originally authorized by OPM, the agency must do so well before the appointment expires. The request should be based upon factors that were not anticipated when the limited appointment was approved. If OPM approves, the agency may only extend if the individual’s appointment has not expired. In no case may the appointment exceed the applicable statutory time limit.

Termination. A limited appointment terminates automatically at the end of the appointment period authorized by OPM but may be terminated by the agency at any time. [See Chapter 8 on Removals for information on termination actions other than expiration of appointment for noncareer and limited appointees.] When a limited appointee has served the length of the appointment, the appointee is given an SF-50 notification. An agency may give any amount and type of additional advance notification.

Right of return. After termination, an appointee on an LTA is entitled to be placed in his/her former position or a position of like status, tenure, and grade if:

• the limited appointment was made without a break in service from a career or career-conditional appointment or an appointment of equivalent tenure (see 5CFR 102) the individual held in the same agency in a permanent civil service position outside the SES; and
• the limited appointment is terminated for reasons other than misconduct, neglect of duty, or malfeasance. Note, however, that a limited appointee with such a return right would normally have access to adverse action procedures that apply to career SES appointees (see 5 CFR 752.601(c)(2) and Chapter 8).

Provisional appointment. Under 5 CFR 316.403(a), an agency is authorized under certain circumstances to designate a temporary appointment of one year or less as “provisional” to make the appointee eligible for life insurance, health benefits, and retirement coverage. When OPM grants an SES limited appointment authority for one year or less for an appointee who is to be converted to a non-temporary appointment upon completion of such further action as required, e.g., Presidential Appointment with Senate Confirmation (PAS), OPM normally specifies that the appointment is considered provisional; however, see also 5 CFR 317.602(a). Provisional designation is generally not needed for appointments of more than 1 year in which an appointee is eligible for life insurance, health benefits and retirement coverage.

SES Limited Appointment Examples

5 U.S.C. 3132(a)(5) states that a limited term appointee is an individual appointed under a nonrenewable appointment for a term of three years or less to a Senior Executive Service position the duties of which will expire at the end of the term. 5 U.S.C. 3132(a)(6) states that a limited emergency appointee is an individual appointed under a nonrenewable appointment for a term of 18 months or less to a Senior Executive Service position established to meet a bona-fide, unanticipated, urgent need. Therefore, in addition to showing that a position’s duties support SES, it is necessary for an agency requesting an SES limited appointing authority to explain why those duties will expire at the end of the requested term.

It is important to note, because limited appointments are made without competition, if an agency grants an SES limited appointment and later holds a merit competition to fill the same position or a successor position by career appointment, the limited appointee will appear to have been given an unfair competitive advantage. In such circumstances, an agency should anticipate OPM will conduct a merit staffing review.

Over the years, OPM has reviewed and approved agency requests for SES limited term appointment in circumstances such as the following:

1. When the duties and responsibilities that are the basis for the SES position will expire, so that at the end of the term there will be no need for an SES position.
   • A statute requires a new program to be established and its mission completed within a period of less than three years.
   • A statute or other external factors require a program to be terminated within a three-year period and the last career SES program leader has departed, leaving a new program leader three years or less to close program operations.
   • The position is established to oversee a project that has a defined end-date within three years. 
   • A program or mission normally led by a GS-15 requires an SES leader to address new and substantially increased but time limited challenges, e.g., to accomplish a major turnaround or restructuring due to adverse findings from a program audit. This assumes the challenge is reliably determined to be subject to resolution within three years after which the program will be led by an employee at GS-15 or below, i.e., the duties requiring SES leadership will end and there will be no SES successor position. (If it is anticipated continuing leadership will be at the SES level, an SES limited term appointment is not appropriate. The agency should recruit for a career SES leader at the beginning.)
2. When the incumbent of an existing SES position is not available to perform the duties of his or her position but still encumbers the position and is expected to return to it, the agency may establish a second temporary SES position to perform those duties and fill it by SES limited appointment until the career SES incumbent returns to the continuing position. Upon the career appointee’s return, the need for and duties of the temporary position expire.
   • Such a need may arise due to a career executive’s absence for reasons such as a detail (e.g., intra-agency, inter-agency, international organization, IPA), a sabbatical, a developmental assignment, or similar circumstances in which a career appointee continues to hold a position and will return to it in three years or less but is not available to perform its duties.
   • It will normally not be possible to use this approach if the absent executive’s position of record is career reserved (5 CFR 402), because a temporary position performing the same duties must also be career reserved and a limited term appointment may only be made to a general position. SES limited appointment would only be possible if the temporary position could be structured to remove duties that require career reserved designation without also eliminating the basis for establishing the position as SES, (i.e., classifiable above GS-15 and meeting the SES functional criteria).
   • This approach is appropriate only so long as the career appointee continues to encumber the continuing position and will be returning to it within three years. If the career appointee is reassigned to another SES position or leaves the agency, the agency should abolish the temporary position and end the limited appointment. The agency may still detail a non-SES employee under 5 CFR 317.903 to the continuing position.
3. An agency mission requires periodic or occasional time-limited employment in SES positions of individuals from outside government who are uniquely qualified to make critical contributions to the agency’s mission, but are not otherwise available for federal service due to their career paths and professional commitments. Appointment should be made to a time limited SES general position distinct from the agency’s continuing positions. In addition to the position’s duties and responsibilities, the position description should focus particularly on results expected from the position, the unique qualifications necessary to achieve those results, and the anticipated impact on program goals, objectives or mission beyond what could be accomplished through agency employees or other staffing methods.

For example, an agency may request a limited term authority to appoint a non-Federal Intergovernmental Personnel Act (IPA) assignee to an SES general position the duties of which will expire within a three-year period.

Required Documentation for Limited Appointment Requests

Agencies needing to request a limited appointment authority should submit the following documents to OPM:

• A letter from agency appointing authority requesting SES limited appointment (term or emergency), identifying the position, organizational location, and why the authority is needed. Additionally, for limited term requests the agency’s objective basis for concluding that the duties of the position will expire by the end of the requested term (not exceeding three years);
• A request (OPM Form 1652) created in the Executive and Schedule C System (ESCS);
• The position description that lists the duties and shows the duties expire during a period not to exceed three years;
• The proposed appointee’s current resume; and
• The applicable agency organizational chart.

Reassignments

OPM Approval. Subject to the expiration date specified by OPM, an agency may reassign a limited term or limited emergency appointee without prior OPM approval, but only to a General position that meets the same statutory criteria under which OPM authorized the original appointment (5 CFR 317.604(b)). OPM must be notified of the reassignment and the agency must document the change of position in ESCS.

Transfers

Transfer of a limited appointee to another agency, may be made only to a General position for

which the individual is qualified. The new agency must obtain prior OPM approval of the required appointment authority in order to transfer the appointee.

In a transfer of function between agencies, limited appointees may be offered transfers at the discretion of both agencies but subject to the ceiling on noncareer appointments that applies to the executive agency to which the function is being transferred. Agencies must get prior approval from OPM for the transfer of appointment authorities.

Details of Limited SES Employees

An agency may detail an SES limited term appointee to a different SES general position the duties of which will expire at the end of three years or less.

An agency may detail an SES limited emergency appointee to a different SES general position established to meet an urgent, unanticipated, bona-fide need.

An agency may not detail an SES limited appointee to a position that does not meet the same conditions that supported OPM approval of the limited term or limited emergency appointment authority, as applicable. In that event, the statutory basis for the SES limited appointment would disappear and the appointment would need to be terminated. This does not preclude a reasonable, temporary “acting” assignment, e.g., during the short term absence of another executive, that does not become the individual’s new continuing assignment or prevent his or her timely return to the SES position and completion of the tasks for which SES limited term appointment was approved.

Intergovernmental Personnel Act (IPA) Assignments

The Intergovernmental Personnel Act (IPA) provides for IPA assignments to or from state and local governments, institutions of higher education, Indian tribal governments and other eligible organizations (as defined in the Act) in order to facilitate cooperation between the Federal Government and those non-Federal entities through the temporary assignment of skilled personnel (5 U.S.C. 3374 and 5 CFR Part 334).

IPA Assignment of a Career SES Member to Non-Federal Entity

An agency may enter into an agreement for a career SES member to serve in a position in a covered non-Federal entity. The executive may be detailed to the assignment or placed on leave without pay and appointed by the receiving organization during the assignment.

[See also Chapter 7, Executive Development, concerning IPA assignments for SES members.]

Appointment of a Non-Federal IPA Assignee to an SES General Position

An agency may enter into an agreement providing for appointment of a non-Federal IPA assignee to an SES general position, but the IPA appointing authority provided in 5 U.S.C. 3374(a)(1) may not be used for that purpose. The agency may request an SES limited term appointment authority from OPM to appoint an IPA assignee to a position the duties of which will expire within a three-year period. If an agency requests limited term authority to appoint an IPA assignee to such a position for only two years and later decides to extend the individual, OPM can authorize an extension of not more than one year. The agency must submit its request in time for OPM to approve and the agency to extend the IPA assignee’s appointment before it expires because an SES limited appointment is nonrenewable. Also, an individual may not serve more than 36 months during any 48-month period under any combination of SES limited term or limited emergency appointments.

Detail of a Non-Federal IPA Assignee to an SES General Position

Alternatively, an agency may enter into an agreement under which a non-Federal IPA assignee is deemed on detail to a Federal agency (5 U.S.C. 3374(a)(2)). An IPA agreement providing for the IPA assignee to be deemed on detail to an SES general position under this provision is not subject to restrictions in 5 CFR 317.903. However, an IPA assignee serving in a GS-15 position, whether by detail or appointment, may only be detailed to an SES position subject to 5 CFR 317.903. This does not preclude amendment of an IPA agreement to provide for assignment to an SES position.

Transitions and Presidential Nominees

To assist in transitions, OPM may make limited term appointment authorities available to agencies following the inauguration of a new President, or the nomination of a new agency head. OPM must approve use of the appointing authority.

Tenure. The appointee does not have career tenure and serves at the pleasure of the appointing authority.

Presidential nominees may be given a limited term appointment authority while awaiting Senate confirmation, but cannot be appointed to the target position, until confirmed by the Senate.

These individuals normally function in an advisory or consultative capacity in another position until confirmed. OPM must approve use of the appointing authority.

Change from Career to Limited Appointment

A career SES appointee cannot be required to accept a limited appointment as a condition for appointment to another SES position [5 CFR 317.904]. If a career appointee voluntarily elects to accept a limited appointment, the voluntary nature of the action must be documented in writing before the appointment. The documentation must be retained permanently in the appointee’s Official Personnel Folder. [See OPM’s Guide to Personnel Recordkeeping, Chapter 3].

If a career appointee is under regular CSRS coverage and is changing to a limited appointment, the individual must be informed that he or she will automatically acquire CSRS Offset coverage (CSRS plus Social Security) or FERS coverage depending on whether the individual has five years of service at the time of the action. (The action also triggers an opportunity to elect FERS coverage if the individual is not automatically covered.) The individual must also be informed that, if he or she later returns to a career SES appointment, it will not be possible to return to regular CSRS coverage without Social Security. The agency Benefits Officer can answer any questions pertaining to these provisions.

Similarly, some agencies had statutory authorities prior to CSRA that authorized scientific or professional positions outside the General Schedule that were not expressly repealed by the CSRA. Under 5 U.S.C. 3104, the Director, OPM is given authority to determine the maximum number of such positions that may be established in any agency, accordingly those authorities are no longer used to establish such positions.

Agencies covered by the Senior Executive Service that seek approval of new statutory authorities that would conflict with the definition of an SES position 5 U.S.C. 3132(a)(2) should include the statute language specifying that the authority applies notwithstanding 5 U.S.C. 3132(a)(2).

Similarly, agencies seeking approval of statutory authorities that would conflict with the OPM Director’s authority under 5 U.S.C. 3104 to establish the maximum number of scientific and professional positions that may be established outside the General Schedule in any agency should include language specifying that the authority applies notwithstanding 5 U.S.C. 3104.

Career Reassignments

Statute: 5 U.S.C. 3395

Regulations:5 CFR 317.901

This section applies to the movement of a career appointee from one SES position to another SES position within an executive agency, a military component, or department. An executive agency is an executive department (e.g., Commerce) or an independent establishment (e.g., General Services Administration). The military components are Army, Navy, and Air Force. The rest of the Department of Defense (DoD) is treated as one agency. (Movement of SES members between executive agencies is a transfer. See Career Transfers later in this chapter.)

A career appointee may be reassigned to any SES position for which the appointee is qualified provided all conditions below are met. There is no prohibition on reassigning a career appointee during the probationary period.

Conditions

Non-Geographic Reassignments. An agency must give a career appointee a written notice at least 15 calendar days before the effective date of the reassignment. The agency is encouraged to consult with the appointee before giving the written notice and the appointee may voluntarily waive the notice. The waiver must be in writing and be retained as a temporary record in the Official Personnel Folder.

Geographic Reassignments (i.e., to another commuting area). An agency must first consult with an appointee on the reasons for and the appointee’s preferences about the proposed reassignment. Congress stated in the section analysis for Pub. L. 98-615 of November 8, 1984, that “the basic premise of the SES is to foster position and geographic movement when in the best interest of the agency.” Following consultation, the agency must provide the appointee a written notice at least 60 calendar days before the effective date of the reassignment. The notice must include the reasons for the reassignment. The appointee may voluntarily waive the notice. The waiver must be in writing and be retained as a temporary record in the Official Personnel Folder.

Change of Duty Station that is Not a Reassignment. A career appointee’s position may be moved from one geographic location to another (i.e., performing the same job but in a different location). An agency must apply the rules for geographic reassignments above.

Failure to Accept a Directed Reassignment

Failure to accept a directed reassignment makes an individual subject to removal under adverse action procedures. If separation is for failure to accept reassignment to a different commuting area, the individual is entitled to discontinued service retirement (if eligible) or severance pay (if eligible), unless a memorandum of understanding or other written agreement provides for such geographic reassignments. For example, if a mobility agreement is accepted at the beginning of the SES member’s service, he or she is not eligible for discontinued service retirement if the member later declines a position outside the commuting area. However, if the mobility agreement is added after the SES member is in the position and he or she declines the position outside the commuting area, the member would be eligible for discontinued service retirement. [See Chapter 8 for information on Removals.]

Moratorium on Involuntary Reassignments

Statute: 5 U.S.C. 3395(e)

Regulations: 5 CFR 317.901(c)

To prevent peremptory reassignments by new appointees without adequate knowledge of the individuals involved, the law provides that an agency may not involuntarily reassign an SES career appointee filling either a career reserved or general position:

• within 120 days after an appointment of the head of the agency; or
• within 120 days after the appointment in the agency of the career appointee’s most immediate supervisor who is a noncareer appointee and has the authority to make an initial appraisal of the career appointee’s performance under 5 U.S.C. Chapter 43, subchapter II.

An appointee may voluntarily accept a reassignment during the moratorium but must agree in writing before the reassignment can occur. The agreement should be retained as a temporary record in the Official Personnel Folder.

Details during the moratorium. In calculating the 120-day moratorium, the agency must not count any days (not to exceed a total of 60) during which the career appointee is serving on a detail or other temporary assignment apart from the appointee’s regular position. The moratorium provision does not restrict the total length of a detail, which may exceed 60 days. Details should not be used to circumvent the 120-day moratorium. Any detail during the moratorium should be made only when there is clear, bona-fide need. [Information on details is provided later in this chapter.]

Definitions. “Head of the agency” means the head of an executive department (e.g., Treasury), a military department (e.g., Army), or an independent establishment (e.g., General Services Administration). It does not mean the head of a component within an agency (e.g., Internal Revenue Service in Treasury).

“Noncareer appointee” is defined in 5 CFR 317.901(c)(1)(ii) as an SES noncareer or limited appointee, a Schedule C appointee, or an appointee in an Executive Schedule or equivalent position that is not required to be filled competitively. (Commissioned officers of the uniformed services are not considered noncareer appointees.)

“Most immediate supervisor” refers to the noncareer appointee who is closest to the career executive in the supervisory chain and who has the authority identified in statute as the basis for initiating the moratorium.

• For the 120-day moratorium on reassignments, it is the noncareer appointee closest to the career executive in the supervisory chain who has authority to make an initial appraisal of the career appointee’s performance (5 U.S.C. 3395(e)). This does not mean a supervisor who functions solely as the reviewing official or final rater.
• For the 120-day moratorium on removals, it is the noncareer appointee closest to the career executive in the supervisory chain who has the authority to remove the career executive (5 U.S.C. 3592(b)).

“Initial appraisal” means the initial summary rating of the career appointee’s performance made by the supervising official (normally the immediate supervisor) as part of the annual performance appraisal process [information on performance appraisals in Chapter 5]. It does not include a recommendation by a higher-level reviewer or the annual summary rating made by the appointing authority.

Applying the Moratorium

New Agency Head. The appointment of a new agency head (including a recess appointment) always initiates the 120-day moratorium throughout the agency, and an action may not be taken by another official even if that official has been in office more than 120 days.

New noncareer supervisor. A moratorium initiated by the appointment of a noncareer supervisor applies only to those career appointees for whom the supervisor gives the initial performance appraisal. It does not apply to other career appointees, even if the noncareer appointee is their higher-level supervisor and functions as a reviewing official or final rater, or has the authority to reassign them.

If a moratorium is initiated by the appointment of a noncareer supervisor, an involuntary reassignment action may not be taken by the agency head even if the agency head has been in office more than 120 days.

“Acting” designations. The designation of an “acting” agency head or noncareer supervisor (e.g., by a detail or when a deputy acts in the position) is not legally an appointment (except in the case of a recess appointment). Therefore, the statutory moratorium is not technically applicable. However, the agency at its discretion may provide in its instructions that it will apply the moratorium on involuntary reassignments in such situations. If the individual later receives a permanent appointment to the position without a break in service, any days spent under an agency applied moratorium in an acting capacity shall be counted toward the 120-day moratorium on involuntary reassignments initiated by the permanent appointment (5 CFR 317.901(c)(5)). However, an agency may not count time served by an individual in an acting capacity toward the 120-day moratorium on involuntary removals (See 5 CFR 359.406; 5 CFR 359.503).

Reassignment based on performance. When an executive is reassigned as a result of an Unsatisfactory performance rating under 5 U.S.C. 4314(b)(3), the 120-day moratorium does not apply if the final performance rating was issued before the appointment that initiated the moratorium. When a final rating of Unsatisfactory has already been issued, the reassignment may proceed even if a new agency head or noncareer supervisor (with authority to make an initial appraisal) is subsequently appointed. However, any moratorium that is already underway at the time the final Unsatisfactory rating is issued must be allowed to run its course before the reassignment action can be taken.

Reassignment notice. The 15- and 60-day advance notices pertaining to reassignment may run concurrently with the 120-day moratorium. However, if the advance notice is issued after the moratorium begins, an involuntary reassignment may not be effected until the moratorium ends. (5 CFR 317.901(d)).

If an advance notice is issued before the moratorium begins but the notice has not yet expired, the involuntary reassignment may be effected at the end of the notice period even if the moratorium has not ended. However, it would not be appropriate for a proposed agency head or noncareer supervisor to have some other official issue a reassignment notice before appointment to avoid application of the moratorium. The action needs to be taken independent of the incoming agency head or noncareer supervisor.

Realignments. The 120-day restriction does not apply to realignment, which is the movement of an employee and the employee’s position when a transfer of function or an organization change occurs within the same agency and there is no change in the employee’s position.

Abolishing positions. The 120-day restriction does not preclude the abolishment of a position during the moratorium. For example, a position could be abolished, and the incumbent could elect immediate discontinued service retirement, if all eligibility requirements are met, or agree to an immediate voluntary reassignment. However, the incumbent could not be involuntarily reassigned until the 120 days have elapsed.

Career Transfers

Statute: 5 U.S.C. 3395(a) and 3595(e)

Regulations: 5 CFR 317.902

This section applies to the movement of a career appointee between executive agencies and/or military departments (Army, Navy, and Air Force). (Movements of SES members within executive agencies or military departments are reassignments and are covered in the previous section on Career Reassignments.)

Conditions

A career appointee may be transferred only with the consent of the appointee and the gaining agency, except where there is a transfer of function between agencies. This provision is not intended to restrict the statutory authority of the Secretary of Defense under Title 10 of the U.S. Code in the matter of transfers between major DoD components specifically directed by the Secretary.

Transfers may be noncompetitive; however, the appointee must meet the qualification requirements of the position to which transferred.

Transfer of Function

A career appointee affected by a transfer of function between agencies has rights comparable to a competitive service employee, as provided in 5 U.S.C. 3595(e). Therefore, the appointee is entitled to transfer with the function if the only alternative upon remaining in the losing agency would be removal through reduction in force. [For information about competitive service provisions on transfer of function, see 5 CFR part 351, Subpart C.]

A career appointee who fails to accompany a transfer of function may be removed from the SES and the Federal service under 5 CFR part 752, Subpart F. [Chapter 8, Removals.] As an alternative to removal, the agency losing the function may reassign the appointee to another SES position in a different function.

Details

Statute: 5 U.S.C. 3341

Regulations: 5 CFR 317.903

A “detail” is the temporary assignment of an SES member to another position (within or outside of the SES) or the temporary assignment of a non-SES employee to an SES position, with the expectation that the employee will return to his/her regular position at the end of the period. A detail may be mandated by an agency. For purposes of pay and benefits, the employee continues to be the incumbent of the position from which he or she is detailed. Details may be made within the employing agency or negotiated between agencies. In either event, the provisions of section 317.903 apply.

Details to SES Positions

Details of career SES members should not be used to circumvent the advance notice requirement for reassignments, or the 120-day moratorium on involuntary reassignments following the appointment of a new agency head, or noncareer supervisor. Any detail during these periods should be made judiciously and only when there is a clear, bona-fide need for the individual to serve in the position. The agency should document the reasons for the detail.

Details of Non-SES Employees to SES Positions (and vice versa)

CSRA created the Senior Executive Service as a new “service” separate and apart from the two existing services (competitive and excepted). Therefore, details of non-SES employees to SES positions and details of SES employees to non-SES positions should be kept to an absolute minimum and strictly controlled. For purposes of pay and benefits, the employee continues to encumber the position from which detailed. An employee may not receive pay in addition to the pay of his or her position for performing the duties of another position (5 U.S.C. 5535(b)).

The duties of a vacant SES position may be restructured temporarily to an appropriate level outside the SES. The agency may then detail or temporarily promote a non-SES employee to the restructured position subject to applicable rules, e.g., 5 CFR 300.301, 5 CFR 335.103, and 5 CFR 302. If the position cannot be restructured to remove it from the SES, an agency should make sure that the detail authority is used judiciously. If the duties of an SES position must be performed by detail for an extended period, the agency should consider rotating several qualified employees through the position.

Details should not be used as a means of providing a specific non-SES employee the opportunity to acquire the qualifications required for entry into the SES (other than in accordance with an OPM-approved SES candidate development program).

Details of SES employees to non-SES positions below the SES level are generally considered to be an inappropriate use of executive talent.

Other Details

For details to non-Federal organizations, see the IPA provisions of 5 U.S.C. 3371-3375 and  5 CFR 334.

For details to the White House and its organizational components, see 3 U.S.C. 112. For details to international organizations, see 5 U.S.C. 3343 and 5 CFR 352 Subpart C.

For details to foreign governments, see 22 U.S.C. 2387; contact the Agency for International Development.

For details to congressional committees, see Chapter 12 of the U.S. Government Accountability Office Report on Principles of Federal Appropriations Law, Third Edition, Volume III.

For vacant positions that are required to be filled by Presidential Appointment with Senate confirmation, see the Federal Vacancies Reform Act of 1998. The Department of Justice has issued extensive guidance on the Act.

Conditions

Initial details and extensions within a department or agency must be made in accordance with 5 U.S.C. 3341 and 5 CFR 317.903(b)(1), which authorize details in increments of no more than

120 days. Although this requirement does not apply to details between departments and agencies, such details should be reviewed periodically to assure that they are still appropriate.

To Career Reserved positions. Only career SES employees and career-type non-SES employees may be detailed to a Career Reserved position. Any SES employee or non- SES employee may be detailed to a General position. A noncareer SES employee may not be detailed to a competitive service position.

To Unclassified Duties. Agencies cannot detail an SES member to unclassified duties for more than 240 days. For a longer detail, the agency must determine whether the duties are at the SES level. If the duties are at that level, the agency has the option of formally establishing an SES position and continuing the detail. If the duties are determined to be GS-15 or below, or equivalent, 5 CFR 317.903(b)(4) requires OPM approval for any extension.

For more than 240 days. An agency must use competitive procedures when detailing a non-SES employee to an SES position for more than 240 days. An agency may apply its competitive procedures under 5 CFR part 335 or 5 CFR part 317 subpart E or comparable procedures devised by the agency; however, it is not necessary to open competition outside the agency. Since details of non-SES employees to SES positions should be kept to a minimum and must be made in increments of not more than 120 days, competition should normally be deferred until it becomes evident there will be a need to exceed 240 days. Even then, competition is only required if a non-SES employee whose selection would result in a detail exceeding 240 days is under consideration. Competition would not be required to detail a different individual to the position. However, competition is not required to detail an employee for more than 240 days who is eligible for noncompetitive career SES appointment, e.g., is a QRB certified SESCDP graduate or eligible for reinstatement under 5 CFR 317 subpart G.

OPM Approval. In addition to competitive procedures, OPM approval is required for a detail of more than 240 days if a non-SES employee is being detailed to an SES position that supervises other SES positions. Since this could enable a non-SES employee to appraise, rate, discipline and remove career senior executives, presumably with adverse impact on morale, an agency must present a compelling case. Approval will be rare and for not more than 120 days. OPM approval and competition are not required if the individual is in an SES-type system and is covered by an SES interchange agreement, as described in Chapter 12. An agency requesting OPM approval for a detail should submit the following documents to OPM, Senior Executive Services and Performance Management, Senior Executive Resources Services:

• A letter from the agency official requesting extension/approval of the detail;
• A detailed written justification outlining the circumstances requiring the extension, including the proposed number of days up to a maximum of 120 days;
• A written description of how the position’s duties have been performed since it became vacant and alternatives the agency considered before requesting the extension; and
• The applicable agency organizational chart and the name and appointment type of the official who would supervise the employee on detail.

OPM approval is also required for a detail of more than 240 days if an SES employee is being detailed to a non-SES position at GS-15 or below, or equivalent. The agency would need to submit a letter from the agency head and detailed written justification making a compelling case why such a detail is needed.

Funding. In the absence of a specific statute authorizing non-reimbursable details, normally both intra-agency and inter-agency details between positions covered by different appropriations, must be made on a reimbursable basis. GAO has identified limited circumstances in which non-reimbursable interagency details may be considered:

• Details involving a matter similar or related to matters ordinarily handled by the loaning agency and will aid the loaning agency in accomplishing a purpose for which its appropriations are provided;
• Details for brief periods when necessary services cannot be obtained, as a practical matter, by other means and the numbers of persons and cost involved are minimal; and
• Details involving an agency faced only with the choice of implementing such details or carrying out a reduction in force.
• When considering a non-reimbursable detail, it is recommended that the agency’s Office of General Counsel be consulted. [See 64 Comp. Gen. 370, B211373, March 20, 1985.]

Effect of Moratorium on Details

The law provides that, in calculating the 120-day moratorium, any days (not to exceed a total of 60 days) during which the career appointee is serving on a detail or other temporary assignment apart from the appointee’s regular position are not counted. The moratorium provision does not restrict the total length of a detail, which may exceed 60 days.

If a career appointee is detailed during the moratorium, or is already on detail at the start of a moratorium, the first 60 days of the detail (or any combination of details) do not count against the 120 days. For example, if the employee is placed on a 90-day detail, the first 60 days would be added to the 120 days, and the moratorium would last 180 days. Although there is no limit on the total length of a detail during the moratorium, any detail during the moratorium must meet the detail requirements in the regulations. It also should be made judiciously and only when there is clear, bona-fide need. Details should not be used to circumvent the 120-day moratorium.

Documentation

An SF-50 or -52 must be filled out:

• if the detail is expected to last 120 calendar days; or
• if the detail is over 30 days and is from a GS-15 or lower position (or equivalent), to an SES position.

However, an SF-50 or -52 is not required if the detail is to an identical position or the detail is from one SES position to another and the occupational series and basic duties are the same as the employee’s current position.

Reinstatement of the SES

Statute: 5 U.S.C. 3593

Regulations: 5 CFR 317.702 and 317.703

Conditions

The following conditions apply for reinstatement to the SES as a career appointee:

• Reinstatement may be based only on prior career service in the SES. Reinstatement eligibility acquired in the competitive service is not transferable to the (Similarly, a career appointment in the SES does not establish reinstatement eligibility in the competitive service.) Receipt of QRB certification is not a basis for reinstatement;
• The appointee must have successfully completed an SES probationary period or been exempt from probation (e.g., converted to the SES as a career appointee when the SES was established in 1979);
• Separation from the SES must not have been for reasons of performance, for disciplinary reasons, or a resignation in lieu of removal for these reasons. However, reinstatement is permitted if separation was because of failure to accept a directed geographic move and there was no written mobility agreement;
• There is no time limit after leaving the SES for reinstatement of an eligible appointee;
• Individuals apply for reinstatement to the agency where the individual wants to work, not to OPM;
• Reinstatement may be noncompetitive or agencies may apply merit staffing procedures at their discretion;
• The agency must determine that the individual meets the qualifications requirements of the position to which reinstated, but the individual need not receive a new QRB certification; and
• If the reinstatement is of a reemployed annuitant, the Standard Form 50 should indicate that the employee serves at the discretion of the appointing authority. 

Reinstatement after Presidential Appointment

This section covers reinstatement of a former SES career appointee appointed by the President to a civil service position outside the SES without a break in service from the career appointment, and who left the Presidential appointment for reasons other than misconduct, neglect of duty, or malfeasance. It does not matter whether the Presidential appointment was with or without Senate confirmation or at what level the position is compensated. Coverage includes an individual who was appointed by a Presidential designee under 3 U.S.C. 107(a) and (b) to a position in the White House Office, Office of Policy Development, or Office of Administration.

Under 5 U.S.C. 3593(b), the individual is entitled to be reinstated to the SES as a career appointee, if he or she applies to OPM within 90 days after separation from the Presidential appointment; however, an individual may also negotiate his/her own reinstatement directly with an agency. An individual who obtains reinstatement by negotiating directly with an agency is not entitled to further assistance from OPM. [See 5 CFR 317.703]

Eligibility

There must not be any break between the SES career appointment and the Presidential appointment. Intervening appointments, such as expert and consultant appointments, constitute a break and will result in loss of directed reinstatement rights.

Subsequent Presidential appointments. If an individual is serving in one Presidential appointment and receives another Presidential appointment without a break in service between the two appointments, the individual continues to be entitled to reinstatement to the SES following termination of the second appointment.

If there is an interim period between expiration of the first Presidential appointment and onset of the second (e.g., while awaiting Senate confirmation), the individual must be reinstated to an appropriate position as an SES career appointee before the effective date of the new Presidential appointment to preserve his or her reinstatement entitlement following termination of the second appointment. (Note that having received an initial Presidential appointment without a break in service makes the individual eligible for reinstatement as a career appointee under 5 CFR 317.703 while awaiting a new Presidential appointment, even if not eligible for general reinstatement due to not having completed the probationary period. See cautions stated below at Other.)

Procedures

A Presidential appointee may apply for reinstatement assistance as soon as the appointee’s resignation is requested or submitted, but not later than 90 days after separation. The application must be in writing and specify the position held immediately before the Presidential appointment. There must also be an effective date for the resignation or separation, because OPM will not begin placement assistance until this date is specified.

To the extent practicable, OPM will direct reinstatement within 45 days of the date OPM receives the application for reinstatement, or the date of separation from the Presidential

appointment, whichever is later. The executive’s expressed geographic availability will be honored when possible. OPM will use the following order of precedence in directing reinstatement:

• the agency in which the individual last served as an SES career appointee before accepting the Presidential appointment;
• the successor agency to the one in which the individual last served as an SES career appointee;
• the agency or agencies in which the individual served as a Presidential appointee; and
• any other agency in the Executive branch with SES positions. 

The agency being directed to take the reinstatement action is responsible for assigning the individual to an SES position for which he or she meets the qualifications requirements.

An individual may negotiate his/her own reinstatement with an agency, rather than requesting OPM assistance.

OPM may, as appropriate, provide an additional SES allocation to an agency that is reinstating a former Presidential appointee.

Pending the reinstatement. When a Presidential appointee resigns, voluntarily or upon request, the agency in which the Presidential appointment was held, upon approval by OPM, may place the individual on a limited term or limited emergency appointment, as appropriate, to avoid a break in service pending reinstatement to a career SES appointment.

Agency Compliance

An agency must comply with an OPM order to reinstate as promptly as possible, but not more than 30 calendar days from the date of the order.

An agency must notify OPM of a reinstatement action within five workdays of the effective date of the reinstatement. The notification should be sent to Senior Executive Services and Performance Management by email or written correspondence.

An individual who declines a reinstatement ordered by OPM is not entitled to further OPM placement assistance under this section.

Separations

If an individual who is eligible for placement in the SES following a Presidential appointment decides instead to separate from the Federal service, the individual would be eligible for discontinued service retirement if otherwise covered, and if the individual meets all requirements, such as age and service requirements, for discontinued service retirement.

Other

Probation. An individual who was serving an SES probationary period at the time of Presidential appointment is required to complete the probationary period upon reinstatement. It is important to make sure that such an individual does not lose the reinstatement entitlement of 5 CFR 317.703 due to any break in service, whether before the initial Presidential appointment or any subsequent Presidential appointment. If the entitlement is lost, the individual would not be eligible for general reinstatement under 5 CFR 317.702 due to not having finished the probationary period.

OPM notification. Agencies shall record the reinstatement action in the ESCS within five workdays.

Retention of SES Benefits Upon Certain Non-SES Appointments

Statute: 5 U.S.C. 3392(c)

Regulations: 5 CFR Part 317, Subpart H

An SES career employee who is appointed to a civil service position in the executive branch outside the SES is entitled to elect to continue certain SES benefits if either of the following conditions is met─

• The appointment is by the President, with Senate confirmation (PAS), to a civilian position in the executive branch that is outside the SES at a rate of basic pay equivalent to Executive Schedule level V (EX-V) or higher.
• The appointment is to a civilian position in the executive branch covered by the Executive Schedule, or the rate of basic pay for the position is fixed by statute at a rate equal to one of the five levels of the Executive Schedule.

Coverage does not include a position for which the minimum rate of basic pay is below EX-V and the maximum rate is at or above EX-V (e.g., senior-level positions), even though at a particular time the pay of the incumbent is equivalent to EX-V or higher. To be eligible, there must be no break in service between the SES career appointment and the non-SES appointment.

This CSRA provision is intended to encourage career appointees to serve at the highest levels of Government and to broaden the pool of individuals from which the President and heads of certain Federal agencies can choose top officials. Consistent with that purpose and

5 U.S.C. 3392(c)(1)(B), OPM considers the opportunity to elect to retain SES benefits to continue when a former career appointee with the election opportunity in a PAS position is appointed without a break in service to a different PAS position that also meets the requirement of 5 USC 3392(c)(1) (i.e., having a rate of basic pay equal to or greater than EX-V). However, if there is a break in service between the PAS appointments, the individual must be reinstated to a career SES appointment and be appointed to the second PAS position without a break in service in order to have the election opportunity.

Benefits. Upon appointment, the employee may elect to retain some, all, or none of the following SES benefits: basic pay (including the aggregate limitation on pay); performance awards; rank awards; severance pay; annual and sick leave; and if elected before November 10, 1988, Social Security coverage. The appointing agency is responsible for advising affected employees of their election opportunity. The election decision must be in writing and will remain in effect no less than one year, unless the appointee leaves the position sooner.

Changes in election. After the initial election has been in effect one year, the appointee may make a change in election for the purpose of adding or dropping coverage no more than once in any 12-month period.

Basic Pay, Performance Awards, and Awarding of Ranks. An employee who elects to retain SES basic pay or eligibility for SES performance awards or awarding of Presidential ranks remains subject to the SES performance appraisal system. Although the individual is eligible to be considered for performance or rank awards, the agency has discretion to determine whether to grant them.

Retirement Coverage. Due to changes introduced by the Miscellaneous Revenue Act of 1988 (Pub. L. 100-647), retirement coverage for an employee who receives a Presidential appointment with Senate confirmation on or after November 10, 1988 (the date of enactment), is determined by the position to which the employee is appointed and is not affected by any election on the employee’s part under 5 U.S.C. 3392(c).

If the position is an Executive Schedule position listed in 5 U.S.C. 5312-17, the employee is subject to mandatory Social Security coverage under CSRS Offset or FERS. If the employee returns to an SES position, the employee remains subject to full FICA deductions in the SES position, regardless of any election the employee made under 5 U.S.C. 3392(c). [See Chapter 11 for information about coverage.]

If the position is not listed in 5 U.S.C. 5312-17, the employee retains whatever retirement coverage was previously applicable under the SES career appointment, whether it was regular CSRS, CSRS Offset, or FERS.

Leave coverage. If an employee elects to retain SES leave coverage, the employee must continue both annual and sick leave coverage. See Chapter 11 for further information.

Reinstatement in the SES

Any SES career appointee who receives a Presidential appointment is entitled to be reinstated to the SES under the conditions specified in the previous section, Reinstatement in the SES. Individuals who have the opportunity to elect to retain benefits under 5 U.S.C. 3392(c)(2) in a non-SES position but who are not Presidential appointees are not entitled to reinstatement.

However, these individuals have general reinstatement eligibility if they meet the conditions of  5 CFR 317.702, including completion of the probationary period for career appointees.

Reemployment Rights

Reemployment rights of SES members who accept certain assignments outside the SES and their agencies (e.g., to international organizations) are covered in 5 CFR part 352. Generally, the individual must have held a career SES appointment before the assignment to be entitled to reemployment, and in some instances, must have completed the SES probationary period. Restoration rights following military duty or recovery from a compensable injury are covered in 5 CFR part 353.